JAC and Attorney General unscathed by latest constitutional shake-up

The Judicial Appointments Commission and Attorney General have both emerged unscathed as the government announced the latest version of its constitutional reforms.

The Constitutional Reform and Governance Bill would remove the remaining hereditary peers from the House of Lords and allow others to be suspended or to resign.

The reform programme, previously contained in the Constitutional Renewal Bill, originally suggested that the Lord Chancellor, Jack Straw, should be given sweeping new powers over the JAC (see Solicitors Journal 24 June 2008).

In return for removing himself from the appointments process for judges below the level of High Court, the Lord Chancellor would have been able to apply additional criteria to appointments, remove posts from those appointed by the JAC and set performance targets.

A spokeswoman for the Ministry of Justice said that, following criticism from the joint select committee on the Bill, ministers had decided to drop the proposals.

'Their opinion was that it was too soon to reform the JAC,' she said.

'The government recognises that the current system has not been in place long and that there is unease about the extent to which this proposal may remove the necessary controls over the process and affect the Lord Chancellor's statutory duty to uphold the independence of the judiciary.'

A further proposal, for the JAC to take over responsibility for lay magistrates, has also been abandoned.

The one change to judicial appointments in the old Bill which Straw is taking forward in the new is the abolition of the prime minister's role in appointing judges in the Court of Appeal and above, which in reality is little more than a rubber stamp.

Constitutional reformers who hoped the government would make radical changes to the role of Attorney General have been disappointed.

Even the modest changes set out in the Constitutional Renewal Bill relating to the role of Attorney General have been dropped.

Instead the Attorney General, Baroness Scotland, has published a protocol, making it clear that she will not be consulted in any case which concerns an MP or peer, or where there is a personal or professional conflict of interest.

Under the protocol she retains her role as legal adviser to the government, criminal justice minister with responsibility for the prosecuting authorities and independent guardian of the public interest.

She can continue to issue guidance to prosecutors in the CPS, SFO and Revenue and Customs Prosecutions Office and attend cabinet meetings when her ministerial responsibilities are on the agenda.

Roger Smith, director of JUSTICE, said that former Attorney General Lord Goldsmith's opinion on the Iraq war and decision to halt the SFO investigation into the Al Yamamah arms deal had highlighted the weaknesses in the role.

'Something should be done to prevent the attorney general from blocking any investigation at all,' Smith said.